BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
AB 681
Assemblymember Hernandez
As Introduced
Hearing Date: June 16, 2009
Civil Code
SK:jd
SUBJECT
Confidentiality of Medical Information: Psychotherapy
DESCRIPTION
This bill, sponsored by the California Association of Marriage
and Family Therapists, would permit a health care provider to
disclose information about a patient's participation in
outpatient psychotherapy without requiring a written signed
request from the entity requesting the information. The
psychotherapist would only be permitted to make such a
disclosure when he or she believes, in good faith, that
disclosure is necessary to prevent or lessen a serious and
imminent threat to the health or safety of a reasonably
foreseeable victim or victims, and the disclosure is made to a
person reasonably able to prevent or lessen the threat,
including the target of the threat.
BACKGROUND
Under common law, persons generally owe no duty to control the
conduct of another, or to warn anyone endangered by the conduct
of another. An exception to that general rule applies to
individuals who have a special relationship to the person whose
conduct is at issue or to the foreseeable victim of that
conduct. (Tarasoff v. Regents of the University of California
(1976) 17 Cal.3d 425, 435.)
In Tarasoff, the California Supreme Court held that when a
psychotherapist "determines, or pursuant to the standards of
[the] profession should determine, that [their] patient presents
a serious danger of violence to another, [the psychotherapist]
(more)
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incurs an obligation to use reasonable care to protect the
intended victim against such danger." (17 Cal. 3d 425, 431.)
To discharge their duty, psychotherapists may be required to
"warn the intended victim or others likely to apprise the victim
of the danger, to notify the police, or to take whatever other
steps are reasonably necessary under the circumstances." (Id.)
Last year, the Legislature passed and the Governor signed into
law AB 1178 (Hernandez, Ch. 506, Stats. 2007) which sought to
ensure that psychotherapists could discharge their duty to warn
without violating the Confidentiality of Medical Information Act
(CMIA). AB 1178 amended CMIA to permit a health care provider
to disclose information about a patient's participation in
outpatient psychotherapy, when the patient's psychotherapist
believes, in good faith, that disclosure is necessary to prevent
or lessen a serious and imminent threat to the health or safety
of a reasonably foreseeable victim. The disclosure must be made
to a person who is reasonably able to prevent or lessen the
threat, including the target of the threat.
In addition, existing law, enacted by AB 416 (Machado, Ch. 527,
Stats. 1999) and amended by SB 598 (Machado, Ch. 463, Stats.
2004), currently provides that a health care provider may not
disclose medical information about a patient's participation in
outpatient therapy to certain entities unless the requesting
entity submits to the provider a written request that specifies,
among other things, the specific information being requested and
its intended use. A copy of the written request must be
provided to the patient within 30 days of receipt of the
information requested.
This bill is intended to allow psychotherapists to disclose
information in a timelier manner when disclosure is necessary to
prevent or lessen a serious and imminent threat by providing
that, only in such cases, a requesting party would not have to
complete the written signed request for the information.
CHANGES TO EXISTING LAW
Existing law , CMIA, prohibits a health care provider, health
care service plan, or contractor from disclosing medical
information regarding a patient, enrollee, or subscriber without
first obtaining an authorization, except as specified. (Civ.
Code Sec. 56.10(a).) Existing law requires a provider of health
care, health care service plan, or contractor to disclose
medical information if the disclosure is compelled as specified
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(Civ. Code Sec. 56.10(b)) and permits a provider of health care
or service plan to disclose medical information in specified
circumstances. (Civ. Code Sec. 56.10(c).)
Existing law provides that a psychotherapist may disclose
medical information about a patient, consistent with applicable
law and standards of ethical conduct, if the psychotherapist, in
good faith, believes that the disclosure is necessary to prevent
or lessen a serious and imminent threat to the health or safety
of a reasonably foreseeable victim or victims, and the
disclosure is made to a person or persons reasonably able to
prevent or lessen the threat, including the target of the
threat. (Civ. Code Sec. 56.10(c)(19).)
Existing law prohibits a health care provider, health care
service plan, or contractor, from disclosing medical information
regarding a patient's participation in outpatient treatment with
a psychotherapist to persons or entities authorized by law to
receive that information, except when the disclosure is for the
purposes of diagnosis or treatment, unless the person or entity
requesting the information submits to the health care provider,
health care service plan, or contractor a signed written request
that includes all of the following:
a) the specific information relating to a patient's
participation in outpatient treatment with a psychotherapist
being requested and its specific intended use or uses;
b) the length of time during which the information will be kept
before being destroyed;
c) a statement that the information will not be used for any
purpose other than its intended use; and
d) a statement that the person or entity requesting the
information will destroy the information and all copies in the
person's or entity's possession or control or will return the
information and all copies of it when the specified timeframe
has expired. (Civ. Code Sec. 56.104(a).)
Existing law requires the person or entity requesting the
information to submit a copy of the written request to the
patient within 30 days of receipt of the information requested,
unless the patient has waived his or her right to a copy. (Civ.
Code Sec. 56.104(b).)
Existing law provides that these notice requirements do not
apply to the disclosure or use of medical information by a law
enforcement agency when required for an investigation of
unlawful activity, unless the disclosure is otherwise prohibited
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by law. (Civ. Code Sec. 56.104(d).)
Existing case law provides that a psychotherapist has a duty not
only to his or her patients, but to any person or persons
threatened by the patient, and holds that the general public
policy favoring the privileged nature of the
patient-psychotherapist communication must yield to such an
extent that disclosure is necessary to avert danger to others.
(Tarasoff v. Regents of the University of California, supra, 17
Cal.3d 425.)
Existing law provides that there shall be no monetary liability
on the part of, and no cause of action shall arise against, a
psychotherapist in failing to warn of and protect from a
patient's threatened violent behavior or failing to predict and
warn of and protect from a patient's violent behavior except
where the patient has communicated to the psychotherapist a
serious threat of physical violence against a reasonably
identifiable victim or victims. (Civ. Code Sec. 43.92(a).)
Existing law also specifies that there shall be no monetary
liability on the part of, and no cause of action shall arise
against, a psychotherapist who, under the limited circumstances
specified in Section 43.92(a), discharges his or her duty to
warn and protect by making reasonable efforts to communicate the
threat to the victim or victims and to law enforcement. (Civ.
Code Sec. 43.92(b).)
Existing law provides, as to the admissibility of evidence, an
exemption to the patient-psychotherapist privilege if the
psychotherapist has reasonable cause to believe that the patient
is in such mental or emotional condition as to be dangerous to
himself or to the person or property of another and that
disclosure of the communication is necessary to prevent the
threatened danger. (Evid. Code Sec. 1024.)
This bill would permit a health care provider to disclose
information about a patient's participation in outpatient
psychotherapy when the patient's psychotherapist believes, in
good faith, that disclosure is necessary to prevent or lessen a
serious and imminent threat to the health or safety of a
reasonably foreseeable victim without requiring the entity
requesting the information to submit the written signed request
that is currently required under Civil Code Section 56.104(a),
described above.
COMMENT
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1. Stated need for the bill
The author writes:
The California Confidentiality of Medical Information Act
generally prohibits the disclosure of medical information.
There are a number of exceptions, however--one example is the
so-called "dangerous patient" who poses a serious danger to
others. Under Tarasoff v. Regents of University of California
(1976) a therapist has a duty to exercise reasonable care to
protect the foreseeable victim of that danger, and Civil Code
Section 56.10 (c)(19) similarly authorizes an exception to
confidentiality under such circumstances. This exception was
created in 2007.
A problem arises, however, in that another Civil Code Section,
56.104, requires an elaborate and time-consuming request and
notification process when a psychotherapist shares information
relating to a patient's participation in outpatient treatment.
In situations that require prompt action because of a
"dangerous" patient-for example a police officer has been
informed of an imminent threat made by a patient-Section
56.104 as written would require the officer to submit a fairly
detailed written request to the therapist and patient. This
could severely hamper the goal of quick action to protect the
public.
The sponsor, the California Association of Marriage and Family
Therapists, additionally explains that Civil Code Section
56.10(c)(19), which permits a psychotherapist to disclose
information when necessary to prevent a serious and imminent
threat, "requires quick action" and "[i]f a police officer has
been notified about a violent patient and has asked a
psychotherapist for information about that patient relevant to
the psychotherapy and the danger he/she presents, it is
unnecessary, illogical, and likely harmful to the victim if the
officer is required to submit the written request to the patient
and to the psychotherapist per Section 56.104. If the Section
56.104 procedural requirements are not waived as applied to
Section 56.10(c)(19), the dangerous patient permissive breach
section would be self defeating and the goal of quick action to
protect the public will be severely hampered."
2. Situations to which the bill would apply; author's amendments
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Under existing law, a psychotherapist may disclose medical
information about a patient when the psychotherapist believes
that the disclosure is necessary to prevent or lessen a serious
and imminent threat to the health or safety of a reasonably
foreseeable victim or victims. The disclosure must be made to a
person who is reasonably able to prevent or lessen the threat,
including the target of the threat.
As a result, under CMIA, psychotherapists may disclose medical
information concerning their patients in these instances. For
example, under CMIA, a psychotherapist is permitted to disclose
information to law enforcement in order to prevent a serious and
imminent threat. Should law enforcement later request
additional information, however, the psychotherapist would
arguably be prohibited from responding to that request for
information unless a written request is completed.
It is important to note, however, that the existing written
request requirements do not apply to the disclosure or use of
medical information by a law enforcement agency when required
for an investigation of unlawful activity. (Civ. Code Sec.
56.104(d).) In some cases therefore the request requirement
will not apply because law enforcement is seeking information
from the psychotherapist in the course of an investigation after
the psychotherapist has reported the threat to law enforcement.
The sponsor notes, however, that there may be cases where, at
the time the request for information is made to the
psychotherapist, law enforcement is not yet investigating
unlawful activity and is, in fact, attempting to prevent
unlawful activity. In that case, the existing exemption under
Section 56.104(d) would not apply.
In response to concerns that the bill might inadvertently allow
a therapist to give information to law enforcement where the
therapist has not yet reported a threat pursuant to Civil Code
Section 56.10(c), the author has agreed to amend the bill as
follows:
On page 2, line 2, delete "and paragraph (19)" and revise the
bill to read:
56.104. (a) Notwithstanding subdivision (c) of Section 56.10,
except as authorized in paragraph (1) of subdivision (c) of
Section 56.10 or except for information requested by law
enforcement subsequent to a disclosure authorized in paragraph
19 of subdivision (c) of Section 56.10 where that information is
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clearly necessary to prevent the serious and imminent threat
disclosed under that paragraph, no provider etc?..
3. Bill would permit disclosures without a written request in
certain instances
As noted earlier, this bill would permit a health care provider
to disclose information about a patient's participation in
outpatient psychotherapy without requiring a written signed
request from the entity requesting the information. The
psychotherapist would only be permitted to make such a
disclosure when he or she believes, in good faith, that
disclosure is necessary to prevent or lessen a serious and
imminent threat to the health or safety of a reasonably
foreseeable victim.
In 1999, AB 416 enacted the written request that is currently
required under existing law. When that bill was being
considered in the Legislature, the author indicated that the
intent of the measure was to require certain entities requesting
outpatient psychotherapy records to demonstrate the need for the
request and commit to handling the records with care and
sensitivity. Under AB 416, the written request must include,
among other things, the specific information requested and the
specific intended use of the information. Existing law also
requires that the requesting party send to the patient a copy of
the request within 30 days of receiving the requested
information.
The sponsor has indicated a concern that this requirement has
the potential to endanger a psychotherapist who has made a
disclosure due to the fact that his or her patient has made a
serious and imminent threat of violence because the patient will
learn of the disclosure and the psychotherapist's role in that
disclosure. In addition, the written request requirement
naturally adds additional time to the processing of the request
for information.
Support : National Association of Social Workers, California
Chapter (NASW-CA); California Society for Clinical Social Work
(CSCSW); American Association for Marriage and Family Therapy;
California Psychiatric Association; Los Angeles County District
Attorney's Office
Opposition : None Known
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HISTORY
Source : California Association of Marriage and Family Therapists
Related Pending Legislation : None Known
Prior Legislation : See Background.
Prior Vote :
Assembly Health Committee (Ayes 19, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
Assembly Floor (Ayes 78, Noes 0)
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